Retained Right of Residence under Appendix EU: Who Qualifies & How to Apply

Retained right of residence refers to a legal status available to the qualifying non-EEA nationals who were living in the UK as a family member of someone from the EU, other EEA nations, or Switzerland who started residing in the UK prior to 11 PM on 31 December 2020, but their relationship ended because, for example, their family member from the EU, other EEA nations, or Switzerland has died, has left the UK, or their relationship with them has permanently broken down. Such non-EEA nationals, if granted the retained right of residence, can continue to live, work, and study in the UK even after their relationship with that EU, EEA, or Swiss citizen ended. Importantly, to ensure you can lawfully remain in the UK, you need to understand whether you qualify for the retained right of residence.

Please note that the Immigration EEA (European Economic Area) Regulations 2016, which previously governed rights of residence for EU, EEA, and Swiss nationals and their family members in the UK, ceased to apply on 31 December 2020. Consequently, one cannot apply for a retained right of residence under these regulations. If you previously relied on these regulations, you would need to apply under the EUSS (EU Settlement Scheme), which superseded the previous Immigration EEA Regulations 2016 following the UK’s departure from the EU.

Usually, if you have an EUSS (EU Settlement Scheme) retained right of residence, you are entitled to live, work, and study in the UK. You may also be able to access public services and benefits, as long as you meet the eligibility criteria. Eventually, you can apply for EUSS - Settled status (a form of Indefinite Leave to Remain) in the UK.

What is Retained Right of Residence?

If you are a non-EEA citizen and were living in the UK as the family member of someone from the EU, EEA, or Switzerland who was residing in the UK on or before 31 December 2020, your immigration position may change if that relationship comes to an end. This could happen because of divorce, the death of the EU/EEA/Swiss national, or if that person leaves the UK. In these circumstances, your ability to remain in the UK may be uncertain. However, if you qualify for a retained right of residence, you may still be allowed to remain in the UK. This specific safeguard was incorporated into the UK’s post-Brexit immigration framework to support people facing exactly such situations.

There is no single pathway to obtain a retained right of residence. The rules recognise that the circumstances of individuals who previously lived in the UK as family members of EU, EEA, or Swiss nationals can change in different ways. Therefore, the UK immigration sets out several specific situations in which a person may still be allowed to stay in the UK even after their relationship with that individual has legally ended.

Importantly, one does not get retained right of residence status automatically, and this status is also not available to everyone. Nevertheless, individuals who meet the relevant requirements may be able to remain lawfully in the UK by applying under the EUSS (EU Settlement Scheme).

You will be required to submit documentary proof of your identity, your previous relationship with the EU/EEA/Swiss citizen, and other documents showing your continued residence in the UK.

Who can apply for the Retained Right of Residence?

To give you the right to live in the UK, your family member needs to be a citizen of an EU country, other EEA nations (Norway, Iceland, or Liechtenstein), or Switzerland, who was residing in the UK by 31 December 2020.

You must also have lived in the UK with your eligible family member before your connection with them ended because they died, left the UK, or the relationship broke down.

Your relationship must have ended due to specific circumstances:

1. Bereavement 

You may apply for retained right of residence under the EUSS if your family member who was an EU/EEA/Swiss national and residing in the UK on or before 31 December 2020, has died. You must have lived in the UK for a minimum of 1 year as a family member of the deceased immediately before they died. Your deceased family member must also have lived in the UK for a minimum of 2 years immediately before they died or have been residing in the UK as a worker or self-employed person when they died.

2. Relationship Terminated 

You must have been living in the UK when your relationship with your EU/EEA/Swiss partner ended, whether through divorce, annulment, or the dissolution.

One of the following must also apply:

• Your marriage or civil partnership lasted for 3 or more years, and both of you must have lived in the UK for one or more years during that time.

• At the time the divorce was initiated, your EU/EEA/Swiss partner must usually have been exercising treaty rights in the UK, such as working, studying, or being self-employed.

• You have custody or responsibility for the child of your EU/EEA/Swiss partner.

• You have the right of access in the UK to the child of your EU/EEA/Swiss partner, and the child is aged under 18.

• You or another family member, in a marriage/civil partnership, has been the victim of domestic violence/abuse.

3. Domestic violence or abuse

You may be able to retain your right of residence if your relationship with your EU/EEA/Swiss citizen family member has permanently ended due to domestic violence/abuse that occurred while you were living together in the UK. For example, if you are a spouse, civil partner, or unmarried partner of an EU/EEA/Swiss national, or a relative of an EU/EEA/Swiss citizen, such as a child or grandchild aged under 21, a dependent child or grandchild aged over 21, or a dependent parent/grandparent.

You can also apply if are a:

1. Primary Carer of a Child

You may be eligible for retained right of residence under the EU Settlement Scheme if you were a primary carer of a child and you have both been living in the UK prior to 11 PM on 31 December 2020. The child could be either a person from the EU/EEA/Switzerland who is self-sufficient, or a child of a person from one of these countries.

2. Child in Education 

If you are a child of someone from the EU/EEA/Switzerland who has either died or left the UK, and you are enrolled in education in the UK, you may retain the right of residence. Your parent who has your custody may also qualify for this status.

How to Apply for Retained Right of Residence under the EU Settlement Scheme?

How you can apply for the retained right of residence under the EU Settlement Scheme varies depending on whether you are currently inside or outside the UK.

As part of your application, you will need to prove your identity. For this purpose, you can scan your identity documents, such as your passport, using the mobile app ‘EU Exit: ID Document Check’, or you can send the documents by post. You will be informed if the Home Office needs additional evidence supporting the application.

Apply from Inside the UK 

If you are residing in the UK, you can apply for retained right of residence online using the official EUSS application portal. 

1. Check if you are eligible

You must ensure that you qualify for a retained right of residence. Normally, you should be eligible if you were living in the UK as a family member of an EU/EEA/Swiss citizen and your relationship with them ended due to:

• Divorce, annulment, or dissolution 

• Death of the EU/EEA/Swiss citizen

• Domestic violence or abuse

• The EU citizen left the UK in certain circumstances

and;

• You were residing in the UK before the relationship ended.

• The EU/EEA/Swiss citizen was living in the UK prior to 31 December 2020.

If you fulfil the requirements stated above, you may apply for EUSS - Pre-settled status or EUSS - Settled status.

2. Submit the supporting documents

As part of your application under the EUSS, you will be required to submit proof of your identity in the form of a valid passport or national identity card. 

You also need to submit evidence of your relationship which you had with an EU/EEA/Swiss citizen, for example, a marriage certificate or a civil partnership certificate.

Provide proof that your relationship has ended. For example, a divorce decree absolute or dissolution certificate, a death certificate of the relevant EU/EEA/Swiss citizen (if applicable), and evidence of domestic violence/abuse (police reports, court orders, support organisation letters).

Documents that show your continuous residence in the UK, such as utility bills, tenancy agreements, or official correspondence.

Non- EEA citizens without a specified relevant document must also provide their biometrics (a facial photograph and fingerprints). 

In case you are unable to provide standard identification documents due to a compelling practical or compassionate reason, for example, because you cannot travel to get this document due to an illness, the Home Office may accept alternative evidence, for which you must provide supporting evidence explaining why you cannot provide a passport or national identity card.

3. Submit your application

You must apply through the EUSS, usually online through the UK government website, where you must complete the relevant EUSS application form.

You will need to create an online account, upload the supporting documents, and give details about your previous EU/EEA/Swiss family member.

4. Receive a decision

If your application is successful, you will be granted either EUSS - Pre-settled status, if you have lived in the UK for less than 5 years, or EUSS - Settled status, if you have lived in the UK for 5 years or more.

Please note that each application is assessed on an individual basis. 

Apply for an EUSS family permit if you are outside the UK

If you have the retained right of residence but you are outside the UK, you will need to apply for an EUSS family permit to enter the UK. A EUSS family permit is valid for up to 6 months, within which you must apply for EUSS – Settled status or EUSS – Pre-settled status.

How can Visa and Migration help?

You may feel that applying for the retained right of residence is a daunting task because it requires stringent documentation and involves several legal complexities. 

Therefore, you can engage with one of our expert UK immigration solicitors who can significantly enhance the likelihood of your application for retained right of residence being successful. We provide you with expert legal advice and tailored solutions depending on the complexity of your case and guide you throughout the complete application process. 

Our team fully understands the up-to-date UK immigration law and is committed to protecting your residence rights. We ensure that your application for retained right of residence under EUSS is meticulously prepared, submitted, followed up with the Home Office, and secures a positive outcome. 

For expert advice and queries on retained right of residence, EU Settlement Scheme, Pre-settled status or Settled status under the EUSS, you can call us at +44 (0)20 3411 1261 or write to info@visaandmigration.com